BRINKER RESTAURANT CORPORATION et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; ADAM HOHNBAUM et al., Real Parties in Interest.
No. S166350
Supreme Court of California
Apr. 12, 2012.
1004
Akin Gump Strauss Hauer & Feld, Rex S. Heinke, Johanna R. Shargel; Morrison & Foerster, Karen J. Kubin; Hunton & Williams, Laura M. Franze, M. Brett Burns and Susan J. Sandidge for Petitioners.
Wilson Sonsini Goodrich & Rosati, Fred W. Alvarez and Michael D. Schlemmer for TechNet as Amicus Curiae on behalf of Petitioners.
William B. Sailer; Paul, Hastings, Janofsky & Walker, Paul Grossman, Paul W. Cane, Jr., Katherine C. Huibonhoa and Rishi Sharma for California Employment Law Council as Amicus Curiae on behalf of Petitioners.
Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr., Julian W. Poon, Kirsten R. Galler, David S. Han, Blaine H. Evanson; National Chamber Litigation Center, Inc., Robin S. Conrad and Shane Brennan Kawka for Chamber of Commerce of the United States of America and California Chamber of Commerce as Amici Curiae on behalf of Petitioners.
Law Office of Robin L. Unander and Robin L. Unander for California Automotive Business Coalition as Amicus Curiae on behalf of Petitioners.
Lawrence Foust; Ballard Rosenberg Golper & Savitt and Christine T. Hoeffner for Childrens Hospital Los Angeles as Amicus Curiae on behalf of Petitioners.
Littler Mendelson, Julie A. Dunne, Lena K. Sims, Matthew S. Dente, Richard H. Rahm and Allan G. King for the National Retail Federation, National Council of Chain Restaurants, Contain-A-Way, Inc., USA Waste of California, Inc., California Building Industry Association, California Professional Association of Specialty Contractors, Western Growers Association, American Staffing Association, California Hotel & Lodging Association and National Association of Manufacturers as Amici Curiae on behalf of Petitioners.
Mayer Brown and Donald M. Falk for the American Trucking Association, Inc., and the California Trucking Association as Amici Curiae on behalf of Petitioners.
Sheppard, Mullin, Richter & Hampton, Richard J. Simmons, Julie A. Dunne and Guylyn R. Cummins for Employers Group, California Retailers Association, California Hospital Association, California Restaurant Association, National Federation of Independent Business Small Business Legal Center, National Council of Chain Restaurants and National Retail Federation as Amici Curiae on behalf of Petitioners.
Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Petitioners.
Robert R. Roginson for the Division of Labor Standards Enforcement and Labor Commissioner Angela Bradstreet as Amici Curiae on behalf of Petitioners.
Cox, Castle & Nicholson, John S. Miller, Jr., and Dwayne P. McKenzie for the Associated General Contractors of California, Inc., as Amicus Curiae on behalf of Petitioners.
Higgs, Fletcher & Mack, Lee Burdick and John Morris for the San Diego Regional Chamber of Commerce as Amicus Curiae on behalf of Petitioners.
Greenberg Traurig, Gregory F. Hurley and Stacey Herter for National Association of Theatre Owners of California/Nevada, Inc., as Amicus Curiae on behalf of Petitioners.
No appearance for Respondent.
Lorens & Associates, L. Tracee Lorens, Robert D. Wilson III, Wayne A. Hughes; Cohelan & Khoury, Cohelan Khoury & Singer, Timothy D. Cohelan, Michael D. Singer, Christopher A. Olsen; The Turley Law Firm, William Turley, David Mara; Furth, Lehmann & Grant, Furth Lehmann, The Furth Firm, Frederick P. Furth, Jessica L. Grant; Schubert & Reed, Schubert Jonckheer Kolbe & Kralowec, The Kralowec Law Group, Robert C. Schubert, Kimberly A. Kralowec; Altshuler Berzon and Michael Rubin for Real Parties in Interest.
Law Offices of Ian Herzog and Ian Herzog for Morry Brookler and the Putative Brookler Class as Amici Curiae on behalf of Real Parties in Interest.
Law Offices of Carroll & Scully, Donald C. Carroll and Charles P. Scully II for California Labor Federation, AFL-CIO as Amicus Curiae on behalf of Real Parties in Interest.
Bryan Schwartz Law, Bryan Schwartz; Arbogast & Berns and David M. Arbogast for California Employment Lawyers Association and Consumer Attorneys of California as Amici Curiae on behalf of Real Parties in Interest.
Brad Seligman for the Impact Fund, Asian Law Caucus, Asian Pacific American Legal Center, Equal Rights Advocates, Lawyers’ Committee for Civil Rights, Legal Aid Society-Employment Law Center, Mexican American Legal Defense & Educational Fund, Public Advocates and Women‘s
Pope, Berger & Williams and Timothy G. Williams for Gelasio Salazar and Saad Shammas as Amici Curiae on behalf of Real Parties in Interest.
Clare Pastore and Kevin Kish for Bet Tzedek Legal Services, Asian Pacific American Legal Center of Southern California, California Rural Legal Assistance Foundation, Centro Legal de La Raza, La Raza Centro Legal, Legal Aid Society-Employment Law Center, Maintenance Cooperation Trust Fund, National Employment Law Project, Stanford Community Law Clinic and Wage Justice Center as Amici Curiae on behalf of Real Parties in Interest.
Locker Folberg, Miles E. Locker; Broad & Gusman and Barry Broad as Amici Curiae on behalf of Real Parties in Interest.
Weinberg, Roger & Rosenfeld, David A Rosenfeld, William A. Sokol, Theodore Franklin and Patricia M. Gates for Alameda County Central Labor Council, Bricklayers & Allied Craftworkers Local Union No. 3, California Conference of Machinists, Communications Workers of America, Contra Costa County Central Labor Council, Northern California Carpenters Regional Council, SEIU United Healthcare Workers West, South Bay Central Labor Council and United Food & Commercial Workers International Union Local 5 as Amici Curiae on behalf of Real Parties in Interest.
Michael L. Smith, Lora Jo Foo and Danielle A. Lucido for Worksafe Law Center, La Raza Centro Legal, Legal Aid Society-Employment Law Center, Southern California Coalition for Occupational Safety & Health and Watsonville Law Center as Amici Curiae on behalf of Real Parties in Interest.
Altshuler Berzon, Michael Rubin, James M. Finberg, Eve Cervantez and Danielle E. Leonard for Rogelio Hernandez as Amicus Curiae on behalf of Real Parties in Interest.
Cynthia L. Rice, Jennifer Ambacher; Brad Seligman, Julia Campins; Julie Su; Irma Herrera; Donna Ryu; Margaret Prado-Alvarez, Matthew Goldberg; Anamaria Loya; D. Michael Dale; and Marci Seville for California Rural Legal Assistance Foundation, the Impact Fund, Asian Pacific American Legal Center, Employee Rights Center, Equal Rights Advocates, Hastings Civil Justice Clinic, Katharine & George Alexander Community Law Center, Legal Aid Society-Employment Law Center, La Raza Centro Legal, Northwest Workers’ Justice Project and Women‘s Employment Rights Clinic as Amici Curiae on behalf of Real Parties in Interest.
WERDEGAR, J. For the better part of a century, California law has guaranteed to employees wage and hour protection, including meal and rest periods intended to ameliorate the consequences of long hours. For most of that time, only injunctive remedies were available for violations of meal and rest period guarantees. In 2000, however, both the Legislature and the Industrial Welfare Commission (IWC) adopted for the first time monetary remedies for the denial of meal and rest breaks. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1105-1106 [56 Cal.Rptr.3d 880, 155 P.3d 284].) These remedies engendered a wave of wage and hour class action litigation, including the instant suit in which the trial court granted class certification and the Court of Appeal then issued writ relief and ordered three subclasses decertified.
We granted review to consider issues of significance to class actions generally and to meal and rest break class actions in particular. We conclude, contrary to the Court of Appeal, that trial courts are not obligated as a matter of law to resolve threshold disputes over the elements of a plaintiff‘s claims, unless a particular determination is necessarily dispositive of the certification question. Because the parties have so requested, however, we nevertheless address several such threshold disputes here. On the most contentious of these, the nature of an employer‘s duty to provide meal periods, we conclude an employer‘s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.
On the ultimate question of class certification, we review the trial court‘s ruling for abuse of discretion. In light of the substantial evidence submitted by plaintiffs of defendants’ uniform policy, we conclude the trial court properly certified a rest break subclass. On the question of meal break subclass certification, we remand to the trial court for reconsideration. With respect to the third contested subclass, covering allegations that employees were required to work “off-the-clock,” no evidence of common policies or means of proof was supplied, and the trial court therefore erred in certifying a subclass. Accordingly, because the Court of Appeal rejected certification of all three subclasses, we will affirm in part, reverse in part, and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants Brinker Restaurant Corporation, Brinker International, Inc., and Brinker International Payroll Company, L.P. (collectively Brinker), own and operate restaurants throughout California, including Chili‘s Grill & Bar
State law obligates employers to afford their nonexempt employees meal periods and rest periods during the workday. (See
In 2002, the Division of Labor Standards Enforcement (DLSE) launched an investigation into whether Brinker was complying with its obligations to provide rest and meal breaks, maintain proper records, and pay premium wages in the event required breaks were not provided. The DLSE filed suit and eventually settled in exchange for Brinker‘s payment of $10 million to redress injuries suffered by employees between 1999 and 2001 and the stipulation to a court-ordered injunction to ensure compliance with meal and rest break laws. In connection with the settlement, Brinker disclaimed all liability.
In the aftermath of the DLSE‘s suit, Hohnbaum filed this putative class action, seeking to represent the cooks, stewards, buspersons, wait staff, host staff, and other hourly employees who staff Brinker‘s restaurants. The operative complaint, the first amended complaint, alleges in its first cause of action that Brinker failed to provide employees the rest breaks, or premium wages in lieu of rest breaks, due them under law. (See
In aid of a court-ordered mediation, the parties stipulated to the trial court‘s resolving the legal issue central to the early lunching theory: whether state law imposes timing requirements on when a meal period must be provided and, if so, what it requires. Hohnbaum contended governing law obligates an employer to provide a 30-minute meal period at least once every five hours. Brinker countered that no such timing obligation is imposed, and an employer satisfies its meal period obligations by providing one meal period for shifts over five hours and two meal periods for shifts over 10 hours.
The trial court generally agreed with Hohnbaum, holding that an employer‘s obligations are not satisfied simply by affording a meal period for each work shift longer than five hours, and that affording a meal period during the first hour of a 10-hour shift, with nothing during the remaining nine hours, would violate the obligation to provide a meal period for each five-hour work period. This advisory opinion subsequently was confirmed as a court order. Brinker filed a writ petition in the Court of Appeal, which was denied.
Hohnbaum then moved for class certification, defining the class as “[a]ll present and former employees of [Brinker] who worked at a Brinker owned restaurant in California, holding a non-exempt position, from and after August 16, 2000.”4 The class definition included several subclasses, three of which are pertinent here: (1) a “‘Rest Period Subclass” comprising all “Class Members who worked one or more work periods in excess of three and a half (3.5) hours without receiving a paid 10 minute break during which the Class Member was relieved of all duties, from and after October 1, 2000“; (2) a “‘Meal Period Subclass‘” covering all “Class Members who worked one or more work periods in excess of five (5) consecutive hours, without receiving a thirty (30) minute meal period during which the Class Member was relieved of all duties, from and after October 1, 2000“; and (3) an “‘Off-The-Clock’ Subclass” for all “Class Members who worked ‘off-the-clock’ or without pay from and after August 16, 2000.”
Brinker opposed class certification, arguing that individual issues predominated. Specifically, Brinker argued that a rest break subclass should not be certified because an employer‘s obligation is simply to permit such breaks to be taken, as Brinker did, and whether employees in fact chose to take such breaks is an individualized inquiry not amenable to class treatment. Brinker contended a meal period subclass should not be certified because an employer is obliged only to make meal breaks available and need not ensure that employees take such breaks. Brinker asserted it had complied with its legal obligation to make meal breaks available, many employees took those breaks, and inquiry into why particular employees did not take meal breaks raised individual questions precluding class treatment. Brinker also contended plaintiffs’ early lunching claims were legally unfounded and, in any event, individual issues again predominated, rendering the meal period claims unsuitable for litigation on a class basis. Finally, Brinker argued the off-the-clock subclass should not be certified because no Brinker policy permitted such alteration of time records, Brinker did not suffer or permit off-the-clock work, and any such off-the-clock work would require individualized employee-by-employee proof. Brinker submitted hundreds of declarations in support of its opposition to class certification.
Following a full hearing, the trial court granted class certification, finding that common issues predominated over individual issues: “[C]ommon questions regarding the meal and rest period breaks are sufficiently pervasive to permit adjudication in this one class action. [][][Brinker‘s] arguments regarding the necessity of making employees take meal and rest periods actually point[] toward a common legal issue of what [Brinker] must do to comply with the Labor Code. Although a determination that [Brinker] need not force employees to take breaks may require some individualized discovery, the common alleged issues of meal and rest violations predominate.” A class proceeding was also superior: “Adjudicating plaintiffs’ allegations in one litigation” would be “much more efficient” than resolving it in 60,000 separate administrative or judicial proceedings, as Brinker had suggested.
DISCUSSION
I. Class Certification Principles
Originally creatures of equity, class actions have been statutorily embraced by the Legislature whenever “the question [in a case] is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court....” (
Drawing on the language of
Here, only a single element of class suitability, and a single aspect of the trial court‘s certification decision, is in dispute: whether individual questions or questions of common or general interest predominate. The “ultimate question” the element of predominance presents is whether “the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.” (Collins v. Rocha (1972) 7 Cal.3d 232, 238 [102 Cal.Rptr. 1, 497 P.2d 225]; accord, Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 [17 Cal.Rptr.3d 906, 96 P.3d 194].) The answer hinges on “whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.” (Sav-On, at p. 327.) A court must examine the allegations of the complaint and supporting declarations (ibid.) and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding
On review of a class certification order, an appellate court‘s inquiry is narrowly circumscribed. “The decision to certify a class rests squarely within the discretion of the trial court, and we afford that decision great deference on appeal, reversing only for a manifest abuse of discretion: ‘Because trial courts are ideally situated to evaluate the efficiencies and practicalities of permitting group action, they are afforded great discretion in granting or denying certification.’ [Citation.] A certification order generally will not be disturbed unless (1) it is unsupported by substantial evidence, (2) it rests on improper criteria, or (3) it rests on erroneous legal assumptions. [Citations.]” (Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1089; see also Hamwi v. Citinational-Buckeye Inv. Co. (1977) 72 Cal.App.3d 462, 472 [140 Cal.Rptr. 215] [“So long as [the trial] court applies proper criteria and its action is founded on a rational basis, its ruling must be upheld.“].) Predominance is a factual question; accordingly, the trial court‘s finding that common issues predominate generally is reviewed for substantial evidence. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 328-329.) We must “[p]resum[e] in favor of the certification order... the existence of every fact the trial court could reasonably deduce from the record....” (Id. at p. 329.)
The appellate judgment reversing certification rests on two separate grounds. First, the Court of Appeal held the trial court committed error per se by ruling on certification without first resolving legal disputes over the scope of Brinker‘s duties to provide meal and rest periods. Second, it held that any court, upon resolving those disputes, could only have concluded certification was inappropriate. We consider the first of these grounds in part II., post, and the second of them in parts IV. through VI., post. As we shall explain, the first ground does not support the judgment, while the second supports it only partially.
The trial court concluded it could certify a class without resolving disputes over the scope of Brinker‘s duty to provide breaks because common questions would predominate even if Brinker‘s legal positions were correct. According to the Court of Appeal, this was error: the trial court “was required to determine the elements of plaintiffs’ claims” because the court “could not determine whether individual or common issues predominate in this case, and thus whether a class action was proper, without first determining this threshold issue.” While we agree trial courts must resolve any legal or factual issues that are necessary to a determination whether class certification is proper, the Court of Appeal went too far by intimating that a trial court must as a threshold matter always resolve any party disputes over the elements of a claim. In many instances, whether class certification is appropriate or inappropriate may be determined irrespective of which party is correct. In such circumstances, it is not an abuse of discretion to postpone resolution of the disputed issue.
“The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’ ” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, quoting Linder v. Thrifty Oil Co., supra, 23 Cal.4th at pp. 439-440; see also Eisen v. Carlisle & Jacquelin (1974) 417 U.S. 156, 178 [40 L.Ed.2d 732, 94 S.Ct. 2140] [“‘In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [class certification] are met.’ “].) A class certification motion is not a license for a free-floating inquiry into the validity of the complaint‘s allegations; rather, resolution of disputes over the merits of a case generally must be postponed until after class certification has been decided (Fireside Bank v. Superior Court, supra, 40 Cal.4th at pp. 1083-1086), with the court assuming for purposes of the certification motion that any claims have merit (Linder, at p. 443).
We have recognized, however, that “issues affecting the merits of a case may be enmeshed with class action requirements....” (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443; see also Wal-Mart Stores, Inc. v. Dukes (2011) 564 U.S. 338 [180 L.Ed.2d 374, 131 S.Ct. 2541, 2551] [Analysis of a class certification‘s propriety “[f]requently... will entail some overlap with the merits of the plaintiff‘s underlying claim. That cannot be helped.“]; Coopers & Lybrand v. Livesay (1978) 437 U.S. 463, 469, fn. 12 [57 L.Ed.2d 351, 98 S.Ct. 2454] [“‘Evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims.’ “].) When evidence or legal issues germane to the certification question bear as well on aspects of the merits, a court may properly evaluate
In particular, whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. (Coopers & Lybrand v. Livesay, supra, 437 U.S. at p. 469, fn. 12; Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443.) To assess predominance, a court “must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.) It must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334.) In turn, whether an element may be established collectively or only individually, plaintiff by plaintiff, can turn on the precise nature of the element and require resolution of disputed legal or factual issues affecting the merits. For example, whether reliance or a breach of duty can be demonstrated collectively or poses insuperable problems of individualized proof may be determinable only after closer inspection of the nature of the reliance required or duty owed and, in some instances, resolution of legal or factual disputes going directly to the merits. (See, e.g., Erica P. John Fund, Inc. v. Halliburton Co. (2011) 563 U.S. 804 [180 L.Ed.2d 24, 131 S.Ct. 2179, 2184-2186]; Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 829-831.)
Such inquiries are closely circumscribed. As the Seventh Circuit has correctly explained, any “peek” a court takes into the merits at the certification stage must “be limited to those aspects of the merits that affect the decisions essential” to class certification. (Schleicher v. Wendt (7th Cir. 2010) 618 F.3d 679, 685.) While the Schleicher defendants urged that the trial court had erred by failing to resolve disputes over the falsity and materiality of their statements, the Seventh Circuit affirmed class certification without inquiry into such matters, concluding no element of the certification determination hinged on their resolution. (Ibid.) Likewise, in Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1303-1305, the Court of Appeal reversed the trial court‘s refusal to certify a wage and hour class without deciding contested legal issues concerning the defendant‘s meal
We summarize the governing principles. Presented with a class certification motion, a trial court must examine the plaintiff‘s theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary. (See Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1074; Schleicher v. Wendt, supra, 618 F.3d at p. 685.) Consequently, a trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision.6
In support of its conclusion that a trial court must always first decide upon the applicable law and resolve legal issues surrounding each element of a proposed class claim, the Court of Appeal relied principally on our decision in Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906. We disagree with the Court of Appeal‘s reading of our decision. In Washington Mutual, the plaintiffs sought certification of a nationwide class. Although members of the plaintiff class were subject to choice-of-law agreements, the trial court granted certification without first determining whether the agreements were enforceable and would result in the application of different state laws, and whether any applicable state laws varied in ways that would render the class proceeding unmanageable. We reversed, explaining that it was not possible to intelligently assess predominance and the manageability of claims asserted on behalf of nonresidents without those determinations. (Washington Mutual, supra, at pp. 915, 922, 927-928.) Washington Mutual involves an unexceptional application of the principles we have articulated: if the presence of an element necessary to certification, such as predominance, cannot be determined without resolving a particular legal issue, the trial court must resolve that issue at the certification
III. Wage Orders and the Labor Code
We turn to the Court of Appeal‘s alternate basis for reversing class certification—that if one considers the substance of the parties’ various legal disputes and the elements of Hohnbaum‘s claims, one must conclude as a matter of law that common questions do not predominate. In assessing that conclusion, at the parties’ request we examine the merits of their substantive legal disputes. (See Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443 [“[W]e see nothing to prevent a court from considering the legal sufficiency of claims when ruling on certification where both sides jointly request such action.“].) Because those disputes derive in part from conflicting visions of the respective roles statutes and wage orders play in establishing the state‘s wage and hour law, we begin by examining those roles.
Nearly a century ago, the Legislature responded to the problem of inadequate wages and poor working conditions by establishing the IWC and delegating to it the authority to investigate various industries and promulgate wage orders fixing for each industry minimum wages, maximum hours of work, and conditions of labor. (Martinez v. Combs, supra, 49 Cal.4th at pp. 52-55; see
We apply the usual rules of statutory interpretation to the
In turn, the IWC‘s wage orders are entitled to “extraordinary deference, both in upholding their validity and in enforcing their specific terms.” (Martinez v. Combs, supra, 49 Cal.4th at p. 61.) When a wage order‘s validity and application are conceded and the question is only one of interpretation, the usual rules of statutory interpretation apply. (Collins v. Overnite Transportation Co. (2003) 105 Cal.App.4th 171, 178-179; see Cal. Drive-in Restaurant Assn. v. Clark (1943) 22 Cal.2d 287, 292.) As with the
The IWC‘s wage orders are to be accorded the same dignity as statutes. They are “presumptively valid” legislative regulations of the employment relationship (Martinez v. Combs, supra, 49 Cal.4th at p. 65), regulations that must be given “independent effect” separate and apart from any statutory enactments (id. at p. 68). To the extent a wage order and a statute overlap, we will seek to harmonize them, as we would with any two statutes. (Cal. Drive-in Restaurant Assn. v. Clark, supra, 22 Cal.2d at pp. 292-293.)
Here, Wage Order No. 5, governing the public housekeeping industry, applies.7 We consider in turn both the scope of the duties it and several related statutes (see §§ 226.7, 512, 516) impose on restaurant employers to afford rest and meal periods, and whether in light of those duties the Court of Appeal erred in reversing as an abuse of discretion the trial court‘s certification of three subclasses.8
A. The Scope of an Employer‘s Duty to Provide Rest Periods
Preliminary to its assessment of the trial court‘s certification of a rest period subclass, the Court of Appeal addressed two threshold legal questions: the amount of rest time that must be authorized, and the timing of any rest periods. We consider these same two questions.
1. The rate at which rest time must be authorized and permitted
Brinker‘s rest period duties are defined solely by Wage Order No. 5, subdivision 12. To determine the rate at which rest time must be authorized, we begin, as always, with the text. (See Reynolds v. Bement, supra, 36 Cal.4th at p. 1086 [“The best indicator of [the IWC‘s] intent is the language of the [wage order] provision itself.“].) Subdivision 12(A) provides in relevant part: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period. The authorized rest period time shall be based on the total hours worked daily at the rate of ten (10) minutes net rest time per four (4) hours or major fraction thereof. However, a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours.”
The text of the wage order is dispositive; it defines clearly how much rest time must be authorized. Under Wage Order No. 5, subdivision 12(A)‘s second sentence, employees receive 10 minutes for each four hours of work “or major fraction thereof.” Though not defined in the wage order, a “major fraction” long has been understood—legally, mathematically, and linguistically—to mean a fraction greater than one-half.9 The term “majority fraction” was first introduced in 1947 and then amended to “major fraction” in 1952;10 the contemporaneous historical evidence suggests the IWC in the 1940‘s understood the term in just such a sense. (See, e.g., IWC meeting mins. (June 14, 1943) p. 22 [interpreting “‘any fraction of fifteen minutes‘” to mean “the majority fraction thereof, or eight minutes or
It follows that Wage Order No. 5, subdivision 12(A)‘s second sentence defines the rest time that must be permitted as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction“), times 10 minutes. Thus, under the initial calculation called for by this part of the wage order, an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on.
Though under the basic calculation the right to 10 minutes’ rest would accrue for any shift lasting more than two hours, the third sentence of Wage Order No. 5‘s rest period subdivision modifies this entitlement slightly. Under the third sentence, “a rest period need not be authorized for employees whose total daily work time is less than three and one-half (3 1/2) hours.” (Wage Order No. 5, subd. 12(A).) Thus, employees working shifts lasting over two hours but under three and one-half hours, who otherwise would have been entitled to 10 minutes’ rest, need not be permitted a rest period. The combined effect of the two pertinent sentences, giving full effect to each, is this: Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.
The Court of Appeal, however, construed the third sentence of the subdivision as supplying the definition of “major fraction thereof,” reasoning that otherwise the three and one-half hour proviso and the preceding language would be irreconcilable. In its view, employees are entitled to 10 minutes’ rest for shifts of three and one-half hours or more, to 20 minutes’ rest for shifts of seven and one-half hours or more, and so on. An employee working a seven-hour shift thus would be entitled to only 10 minutes’ rest.
Second, the Court of Appeal‘s interpretation disregards the use of the word “However” at the beginning of the three and one-half hour proviso, which signals that what follows is a deviation from or exception to the previous rule, not an amplification of it. Though the Court of Appeal perceived an inconsistency, there is nothing inconsistent in reading the three and one-half hour proviso as a specific exception to the general rule that working for a “major fraction” of four hours is sufficient to entitle one to rest time: to earn the first 10 minutes, one must be scheduled for a work shift of at least three and one-half hours, while to earn the next 10 minutes, one must be scheduled to work four hours plus a major fraction, to earn the next, eight hours plus a major fraction, and so on.
The IWC‘s explanatory remarks at the time the three and one-half hour proviso was adopted reveal the proviso was intended as just such a limited exception: “The rest period provision was clarified to indicate that an employee working less than 3 1/2 hours for the entire day would not need to have a rest period.” (IWC meeting mins. (May 16, 1952) p. 34.) The three and one-half hour proviso thus was not inserted as a definition of the phrase “major fraction,” but simply as a limit on the shift length that would warrant any break at all.
Finally, the Court of Appeal attached great significance to a different 1952 change, the substitution in the wage order of “major” for “majority,” but the two terms are essentially synonymous when used as modifiers, and the change appears to have been the product of an idiomatic choice, rather than an intended semantic distinction. (See also IWC wage order No. 5-57, subd. 15(a) (Nov. 15, 1957) [amending toilet requirements to mandate “one toilet for every twenty-five (25) female employees or major fraction thereof” in lieu of “. . . majority fraction thereof” with no evident change in meaning].)
2. Rest period timing
Hohnbaum asserts employers have a legal duty to permit their employees a rest period before any meal period. Construing the plain language of the operative wage order, we find no such requirement and agree with the Court of Appeal, which likewise rejected this contention.
Wage Order No. 5, subdivision 12(A) provides in relevant part: “Every employer shall authorize and permit all employees to take rest periods, which insofar as practicable shall be in the middle of each work period.” Neither this part of the wage order nor subdivision 11, governing meal periods, speaks to the sequence of meal and rest breaks. The only constraint on timing is that rest breaks must fall in the middle of work periods “insofar as practicable.” Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. At the certification stage, we have no occasion to decide, and express no opinion on, what considerations might be legally sufficient to justify such a departure.
The difficulty with Hohnbaum‘s argument that we should read into the wage order an absolute obligation to permit a rest period before a meal period can be illustrated by considering the case of an employee working a six-hour shift. Such an employee is entitled (in the absence of mutual waiver) to a meal period (Wage Order No. 5, subd. 11(A)) and, as discussed above, to a single rest period. Either the rest period must fall before the meal period or it must fall after. Neither text nor logic dictates an order for these, nor does anything in the policies underlying the wage and hour laws12 compel the conclusion that a rest break at the two-hour mark and a meal break at the four-hour mark of such a shift is lawful, while the reverse, a meal break at the two-hour mark and a rest break at the four-hour mark, is per se illegal.
Hohnbaum seeks to overcome the lack of textual support for his position by offering a DLSE opinion letter interpreting the identical language in a different wage order. (Dept. Industrial Relations, DLSE Opn. Letter No. 2001.09.17 (Sept. 17, 2001) [interpreting IWC wage order No. 16-2001 (
B. Certification of a Rest Period Subclass
In granting class certification, the trial court accepted without modification the proposed class and subclass definitions. The rest period subclass covers “Class Members who worked one or more work periods in excess of three and a half (3.5) hours without receiving a paid 10 minute break during which the Class Member was relieved of all duties, from and after October 1, 2000 (‘Rest Period Subclass‘).”
That the trial court did not apply improper criteria, i.e., decide certification on a basis other than whether superiority of the class action mechanism, commonality of issues, and other relevant factors had been shown, is undisputed. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 332; Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1451.) Nor, as we have discussed, was the trial court obligated as a matter of law to resolve all legal disputes concerning the elements of Hohnbaum‘s rest break claims before certifying a class. (Ante, pt. II.) Hence, the only remaining question is whether the court abused its discretion in concluding that common questions predominate. We conclude it did not.
The issue for the trial court was whether any of the rest break theories of recovery advanced by Hohnbaum were “likely to prove amenable to class treatment.” (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 327.) The complaint alleges Brinker failed “to provide rest periods for every four hours or major fraction thereof worked per day to non-exempt employees.” Though Hohnbaum briefs multiple theories of liability, to conclude class certification was not an abuse of discretion we need consider only one: the theory that Brinker adopted a uniform corporate rest break policy that violates Wage Order No. 5 because it fails to give full effect to the “major fraction” language of subdivision 12(A).
In reversing class certification, the Court of Appeal concluded that because rest breaks can be waived—as all parties agree—“any showing on a class basis that plaintiffs or other members of the proposed class missed rest breaks or took shortened rest breaks would not necessarily establish, without further individualized proof, that Brinker violated” the
We observe in closing that, contrary to the Court of Appeal‘s conclusion, the certifiability of a rest break subclass in this case is not dependent upon resolution of threshold legal disputes over the scope of the employer‘s rest break duties. The theory of liability—that Brinker has a uniform policy, and that that policy, measured against wage order requirements, allegedly violates the law—is by its nature a common question eminently suited for class treatment. As noted, we have at the parties’ request addressed the merits of
V. Meal Period Class Certification
As with the rest break subclass, the Court of Appeal addressed two threshold legal issues before assessing whether certification of a subclass was proper: (1) the nature of an employer‘s duty to provide employees with meal periods; and (2) the timing requirements applicable to the provision of meal periods. We likewise begin with these issues.
A. The Scope of the Employer‘s Duty to Provide Meal Periods
1. The nature of the duty
We consider what it means for an employer to provide a nonexempt employee a meal period. Hohnbaum contends an employer is obligated to “ensure that work stops for the required thirty minutes.” Brinker, in a position adopted by the Court of Appeal, contends an employer is obligated only to “make available” meal periods, with no responsibility for whether they are taken. We conclude that under Wage Order No. 5 and
Historically, an employer‘s meal period obligations were governed solely by the language of the IWC‘s wage orders, and so we begin there. Under Wage Order No. 5, subdivision 11(A), “[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . .” absent a mutual waiver in certain limited circumstances. The wage order employs no verb between “without” and “a meal period” (e.g., providing, requiring, offering, allowing, granting) to specify the nature of the employer‘s duty. Rather, the order identifies only the condition triggering the employer‘s duty (employment of any person for at least five hours) and the employee‘s concomitant entitlement (a meal period of at least 30 minutes).
Parsed, the order‘s text spells out the nature of “‘on duty‘” meal periods and the precise circumstances in which they are permitted. It follows that absent such circumstances, an employer is obligated to provide an “off-duty” meal period. The attributes of such off-duty meal periods are evident from the nature of their reciprocal, on-duty meal periods. An on duty meal period is one in which an employee is not “relieved of all duty” for the entire 30-minute period. (Wage Order No. 5, subd. 11(A).) An off-duty meal period, therefore, is one in which the employee “is relieved of all duty during [the] 30 minute meal period.” (Ibid., italics added.) Absent circumstances permitting an on-duty meal period, an employer‘s obligation is to provide an off-duty meal period: an uninterrupted 30-minute period during which the employee is relieved of all duty.
The IWC‘s wage orders have long made a meal period‘s duty-free nature its defining characteristic. The 1943 version of the wage order governing restaurant employees first introduced the principle: “No employer shall employ any woman or minor for a work period of more than five (5) hours without an allowance of not less than thirty (30) minutes for a meal. If during such meal period the employee can not be relieved of all duties and permitted to leave the premises, such meal period shall not be deducted from hours worked.” (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943).) The 1947 wage order retained the duty-free concept, but more clearly specified the circumstances under which an employer would be excused from relieving an employee: “An ‘on duty’ meal period will be permitted only when the nature of the work prevents an employee from being relieved of all duty, and such ‘on duty’ meal period shall be counted as hours worked without deduction from wages.” (IWC wage order No. 5 R, subd. 10 (June 1, 1947).) In 1963, the operative language was amended almost to its current form (IWC wage order No. 5-63, subd. 11(a) (Aug. 30, 1963)), save for the requirement that on-duty
As the IWC explained plainly in 1979: “A ‘duty free’ meal period is necessary for the welfare of employees. The section is sufficiently flexible to allow for situations where that is not possible,” i.e., by establishing conditions for an on-duty meal period. “The Commission received no compelling evidence and concluded that there was no rationale to warrant any change in this section, the basic provisions of which date back more than 30 years.” (IWC, Statement as to the Basis for Wage Order No. 5-80 (Sept. 7, 1979); accord, IWC, Statement as to the Basis for Wage Order No. 5-89 (Sept. 7, 1989); IWC statement of findings in support of 1976 wage order revisions (Aug. 13, 1976) p. 14.)
The DLSE‘s contemporaneous opinion letters reflect the same understanding. In 1988, the DLSE noted it “has historically taken the position that unless employees are relieved of all duties and are free to leave the premises, the meal period is considered as ‘hours worked.‘” (Dept. Industrial Relations, DLSE Opn. Letter No. 1988.01.05 (Jan. 5, 1988) p. 1.) Three years later, in response to a question concerning employees working in the field free of direct supervision and control, it advised that if “the employee has a reasonable opportunity to take the full thirty-minute period free of any duty, the employer has satisfied his or her obligation. The worker must be free to attend to any personal business he or she may choose during the unpaid meal period.” (Dept. Industrial Relations, DLSE Opn. Letter No. 1991.06.03 (June 3, 1991) p. 1.)15 As these opinion letters make clear, and as the DLSE argues in its amicus curiae brief, the wage order‘s meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period. (DLSE Opn. Letter No. 1988.01.05, supra, at p. 1; Dept. Industrial Relations, DLSE Opn. Letter No. 1996.07.12 (July 12, 1996) p. 1.) We agree with this DLSE interpretation of the wage order.
It was against this background that in 1999 the Legislature first regulated meal periods, previously the exclusive province of the IWC. New
The duty to provide meal periods is not further defined by
Examination of the relevant legislative history confirms this reading. The origins of
As part of its response to the IWC‘s rollback of employee protections, the Legislature wrote into statute various guarantees that previously had
Hohnbaum contends that an employer has one additional obligation: to ensure that employees do no work during meal periods. He places principal reliance on a series of DLSE opinion letters. In 2001, in the course of discussing rest breaks, the DLSE distinguished an employer‘s meal break duties and observed that for meal breaks “[an] employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and free to leave the worksite . . .” (Dept. of Industrial Relations, DLSE Opn. Letter No. 2001.09.17, supra, p. 4, italics added.) In 2002, the DLSE reiterated the point: with regard to meal periods, “an employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and . . . free to leave the employer‘s premises.” (Dept. of Industrial Relations, DLSE Opn. Letter No. 2002.01.28 (Jan. 28, 2002) p. 1, italics added; see also Dept. of Industrial Relations, DLSE Opn. Letter No. 2002.09.04 (Sept. 4, 2002) p. 2 [“[A]s a general rule the required meal period must be an off-duty meal period, during which time the employee . . . is not suffered or permitted to work . . .“].)
We are not persuaded. The difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute. While at one time the IWC‘s wage orders contained language clearly imposing on employers a duty to prevent their employees from working during meal periods,17 we have found no order in the last half-century continuing that obligation. Indeed, the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee
For support, Hohnbaum focuses on the phrase “No employer shall employ any person [without the specified meal period] . . .” (Wage Order No. 5, subd. (11)(A)), contending that “employ” includes permitting or suffering one to work, and so the employer is forbidden from permitting an employee to work during a meal break. Although Hohnbaum is entirely correct about the broad meaning the wage order gives the term “employ” (see Wage Order No. 5, subd. 2(E) [“‘Employ’ means to engage, suffer, or permit to work.‘“]),18 his argument misconstrues the role that broad definition plays in the structure of subdivision 11(A). The provision identifies both an employer obligation (relieving employees of all duty for 30 minutes) and a condition precedent or trigger for that obligation. “No employer shall employ” is part of the definition of the trigger, not of the obligation. If an employer engages, suffers, or permits anyone to work for a full five hours, its meal break obligation is triggered. “Employ” relates to what must transpire during the five-hour work period; it does not relate to what must transpire next.
What must transpire after the meal break obligation is triggered is covered by later parts of the subdivision relating to waiver, on-duty meal periods (and by negative implication off-duty meal periods), and premium pay. When someone is suffered or permitted to work—i.e., employed—for five hours, an employer is put to a choice: it must (1) afford an off-duty meal period; (2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or (3) obtain written agreement to an on-duty meal period if circumstances permit. Failure to do one of these will render the employer liable for premium pay. (§ 226.7, subd. (b); Wage Order No. 5, subd. 11(A), (B).) As earlier discussed, because the defining characteristic of on-duty meal periods is failing to relieve an employee of duty, not simply “suffering or permitting” work to continue, it follows that off-duty meal periods are
Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. (Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 962-963; see also Jaimez v. Daiohs USA, Inc., supra, 181 Cal.App.4th at pp. 1304-1305 [proof of common scheduling policy that made taking breaks extremely difficult would show violation]; Dilts v. Penske Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 [indicating informal anti-meal-break policy “enforced through ‘ridicule’ or ‘reprimand‘” would be illegal].) The wage orders and governing statute do not countenance an employer‘s exerting coercion against the taking of, creating incentives to forgo, or otherwise encouraging the skipping of legally protected breaks.
To summarize: An employer‘s duty with respect to meal breaks under both
On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the
2. Meal period timing
We turn to the question of timing. To determine whether the IWC or the Legislature intended to regulate meal period timing, we consider the language and history of both
We begin with the text of
The first interpretation is the correct one: the statute requires a first meal period no later than the start of an employee‘s sixth hour of work.
We turn to the matter of second meal periods.
Hohnbaum contends
The further issue is whether Wage Order No. 5 imposes any additional requirement. We agree with Brinker that it does not.
The IWC has long been understood to have the power to adopt requirements beyond those codified in statute. (Industrial Welfare Com. v. Superior Court, supra, 27 Cal.3d at p. 733; Cal. Drive-in Restaurant Assn. v. Clark, supra, 22 Cal.2d at pp. 292-294; see also ante, at p. 1027.)
The text of Wage Order No. 5 is ambiguous. Subdivision 11(A) provides in relevant part: “No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day‘s work the meal period may be waived by mutual consent of the employer and employee.” This language may be read to mirror our interpretation of
Evidence in the historical record suggests the IWC‘s meal period language originally was intended to limit employees to five-hour work intervals without a meal. In 1943, the first version of the current language appeared:
At the time, this provision was understood to apply to the work intervals that conclude shifts, as well as those that begin shifts. In response to a request from a regulated store that, for shifts running from 9:00 a.m. to 6:00 p.m., employees be permitted to lunch between 11:00 a.m. and noon, i.e., with six hours between the end of the meal period and the shift end, the IWC adopted an exception to the five-hour limit, allowing work periods of up to six hours at the end of shifts. (IWC wage order No. 5 NS, subd. 3(d) (June 28, 1943) [“However, if the employee‘s work for the day will be completed within six (6) hours, such meal period need not be given.“]; IWC meeting mins. (Jan. 29, 1943) p. 15; IWC meeting mins. (Feb. 5, 1943) p. 19.)
In 1947, the IWC briefly departed from its original formulation, rewriting the timing requirement to apply only to the beginning of each work shift. (IWC wage order No. 5 R, subd. 10 (June 1, 1947) [“No employee shall be required to work more than five (5) consecutive hours after reporting for work, without a meal period of not less than (30) minutes.“].) In 1952, however, it returned to its previous approach, adopting language that has been carried forward to today without significant change.23 (IWC wage order No. 5-52, subd. 11 (Aug. 1, 1952) [“No employer shall employ any woman or minor for a work period of more than five (5) hours without a meal period of not less than thirty (30) minutes; except that when a work period of not more than six (6) hours will complete the day‘s work, the meal period may be waived.“].) The IWC explained this revision was intended to expand the right to meal periods from a single break in the first five hours to one at least every five hours through the day: “The meal period provision was amended to permit a 6-hour work period without a meal when such a work shift would complete the day‘s work, [with] the additional provision that a meal period shall be every 5 hours rather than providing only one meal period within the
The IWC‘s descriptions of its meal requirement in the ensuing years similarly reflected an understanding that work periods before and after meals were to be limited to five hours absent waiver. For example, the commission, discussing IWC wage order No. 12-63 (Aug. 30, 1963) (identically worded to Wage Order No. 5 save for a longer permissible period between meals), explained that the meal provision “requires the employer to provide meal periods at intervals of no more than five and one-half hours within the work period.” (Wage Board for IWC Wage Order No. 12—Motion Picture Industry, Rep. & Recommendations (Oct. 21, 1966) p. 6; see also Margaret T. Miller, IWC executive officer, letter to Klaus Wehrenberg (July 13, 1982) p. 2 [under the IWC‘s wage orders, “meal periods must be provided ‘at such intervals as will result in no employee working longer than five consecutive hours without an eating period’ “].)
In 1999, however, the Legislature passed Assembly Bill No. 60 (1999–2000 Reg. Sess.), which among other things repudiated the IWC‘s actions in adopting a series of wage orders that had eliminated daily overtime. (Harris v. Superior Court (2011) 53 Cal.4th 170, 177; ante, at p. 1037.) Assembly Bill No. 60 repealed five wage orders, including IWC wage order No. 5-98 (Jan. 1, 1998), and required the IWC to review its wage orders and readopt orders conforming to the Legislature‘s expressed intentions. (§ 517; Stats. 1999, ch. 134, § 21, p. 1829.) It also enacted
The IWC complied with the directive to adopt new wage orders. Pending completion of plenary review, it issued an interim wage order applicable to all industries, including those previously and subsequently covered by Wage Order No. 5. Notably, the interim order mirrored
Thereafter, the IWC held public hearings and adopted revised wage orders for each industry, including the current version of Wage Order No. 5, wage order No. 5-2001. From our review of the text of the various wage orders, the IWC‘s official explanations of its intent behind these orders, and the transcripts of the IWC‘s numerous hearings, we conclude the IWC abandoned any requirement that work intervals be limited to five hours following the first meal break.
With only limited exceptions, the IWC intended its 2001 wage orders to embrace
The IWC varied slightly the language of wage orders Nos. 4-2001 and 5-2001. These two orders retained the same subdivision 11(A) language
The IWC had originally modified the meal waiver requirements in wage orders Nos. 4 and 5 in 1993, in response to a health care industry petition to permit its employees to waive a second meal period on longer shifts in order to leave earlier. (See IWC petn. 93-1 (Jan. 25, 1993) pp. 31–32; IWC wage order No. 4-89, subd. 11(C) (as amended Aug. 21, 1993); IWC wage order No. 5-89, subd. 11(C) (as amended Aug. 21, 1993); IWC, Statement as to the Basis of amends. to §§ 2, 3 & 11 of IWC wage order No. 5-89 (June 29, 1993).) The IWC later extended similar waiver rights to all employees covered by these wage orders and three others, but that extension was among many wage order changes repealed by the Legislature in 1999. (IWC, Statement as to the Basis, overtime and related issues (Apr. 11, 1997) pp. 7–8; Stats. 1999, ch. 134, § 21, p. 1829.)
Thereafter, health care representatives persuaded the IWC to at least preserve expanded waiver rights for their industry, along the lines of those originally afforded in 1993. (See IWC, Statement as to the Basis (Jan. 1, 2001) pp. 19–20.) Accordingly, wage orders Nos. 4-2001 and 5-2001 each contain a provision absent from other wage orders, permitting health care employees to waive one of two meal periods on longer shifts. (IWC wage order No. 4-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11040, subd. 11(D)); Wage Order No. 5, subd. 11(D).)25 Notably, the waiver provisions permit meal waivers even on shifts in excess of 12 hours and thus conflict with language in the standard subdivision regulating second meal periods in other wage orders that limits second meal waivers to shifts of 12 hours or less (see, e.g., IWC wage order No. 2-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11020, subd. 11(B))). For this reason, the IWC elected to omit that standard subdivision from these two wage orders. (See IWC, Statement as to the Basis (Jan. 1, 2001) pp. 19–20.) Because the omission related to
Hohnbaum contends he does not seek to require earlier second meal periods than provided for by
First, such a reading of subdivision 11(A) in the IWC‘s current wage orders would render the subdivision 11(B) guarantee of a second meal period after 10 hours of work, included in most of those same orders, superfluous. (See, e.g., IWC wage order No. 2-2001 (Jan. 1, 2001) (Cal. Code Regs., tit. 8, § 11020, subd. 11(A), (B)).) We avoid such constructions whenever possible. (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2006) 40 Cal.4th 1, 14.)27
Second, Hohnbaum‘s argument rests on the contention that as used by the IWC, ” ‘work period’ is a term of art meaning ‘a continuing period of hours worked,’ ” and thus the five-hour “work period” limit in subdivision 11(A) of the wage orders must preclude more than five hours of continuous work after a meal period. “Work period” is not defined in any wage order. If the IWC‘s wage orders once informally adhered to Hohnbaum‘s usage, its 2001 orders no longer do. Subdivision 11(B) in most of the current orders refers to a “work period of more than ten (10) hours per day” before a second meal period. (E.g., IWC wage order No. 1-2001 (Jan. 1, 2001) (Cal.
Third, there is no evidence the IWC intended to supplement the requirements of
Accordingly, we conclude that Wage Order No. 5 imposes no meal timing requirements beyond those in
B. Certification of a Meal Period Subclass
We return to the question of certification. The proposed meal period subclass includes all “Class Members who worked one or more work periods in excess of five (5) consecutive hours, without receiving a thirty (30) minute
One aspect of the class definition is notable: It sweeps in not only every Brinker employee who might have a claim under Hohnbaum‘s failure to provide meal periods theory, but also every employee who might have had a claim under the theory that a meal period must be provided every five hours. Consequently, because we have concluded neither Wage Order No. 5 nor
That aspect of the class definition is notable for a second reason. In an unusual action requested by the parties, the trial court before deciding certification issued an explicit ruling on Hohnbaum‘s meal timing theory, agreeing with Hohnbaum that
Under the unique circumstances of this case, however, we need not decide whether or not the trial court erred. Our subsequent ruling on Hohnbaum‘s meal timing theory, solicited by the parties, has changed the legal landscape; whether the trial court may have soundly exercised its discretion before that ruling is no longer relevant. At a minimum, our ruling has rendered the class definition adopted by the trial court overinclusive: The definition on its face embraces individuals who now have no claim against Brinker. In light of our substantive rulings, we consider it the prudent course to remand the question
VI. Off-the-clock Claims Class Certification
The third disputed subclass covers “Class Members who worked ‘off-the-clock’ or without pay from and after August 16, 2000.” As with the rest period subclass, we consider only whether substantial evidence supports the trial court‘s conclusion that common questions predominate. None does.
Hohnbaum‘s off-the-clock claims are an offshoot of his meal period claims. He contends Brinker required employees to perform work while clocked out during their meal periods; they were neither relieved of all duty nor afforded an uninterrupted 30 minutes, and were not compensated. Hohnbaum further contends Brinker altered meal break records to conceal time worked during these periods.
Unlike for the rest period claim and subclass, for this claim neither a common policy nor a common method of proof is apparent. The rest period claim involved a uniform Brinker policy allegedly in conflict with the legal requirements of the Labor Code and the governing wage order. The only formal Brinker off-the-clock policy submitted disavows such work, consistent with state law.29 Nor has Hohnbaum presented substantial evidence of a systematic company policy to pressure or require employees to work off-the-clock, a distinction that differentiates this case from those he relies upon in which off-the-clock classes have been certified. (See, e.g., Salvas v. Wal-Mart Stores, Inc. (2008) 452 Mass. 337 [893 N.E.2d 1187, 1210–1211]; Hale v. Wal-Mart Stores, Inc. (Mo.Ct.App. 2007) 231 S.W.3d 215, 220, 225–228; Iliadis v. Wal-Mart Stores, Inc. (2007) 191 N.J. 88 [922 A.2d 710, 715–716, 723–724].)
Moreover, that employees are clocked out creates a presumption they are doing no work, a presumption Hohnbaum and the putative class members have the burden to rebut. As all parties agree, liability is contingent on proof Brinker knew or should have known off-the-clock work was occurring. (Morillion v. Royal Packing Co., supra, 22 Cal.4th at p. 585; see, e.g., White v. Starbucks Corp. (N.D.Cal. 2007) 497 F.Supp.2d 1080, 1083–1085 [granting the defense summary judgment on an off-the-clock claim in the absence of proof the employer knew or should have known of the employee‘s work].) Nothing before the trial court demonstrated how this could be shown through common proof, in the absence of evidence of a uniform policy or practice. Instead, the trial court was presented with anecdotal evidence of a handful of individual instances in which employees worked off-the-clock, with or without knowledge or awareness by Brinker supervisors. On a record such as this, where no substantial evidence points to a uniform, companywide policy, proof of off-the-clock liability would have had to continue in an employee-by-employee fashion, demonstrating who worked off-the-clock, how long they worked, and whether Brinker knew or should have known of their work. Accordingly, the Court of Appeal properly vacated certification of this subclass.
DISPOSITION
For the foregoing reasons, we affirm the Court of Appeal‘s judgment as to the off-the-clock subclass. We reverse its judgment as to the rest period subclass. Finally, as to the meal period subclass, we reverse the Court of Appeal‘s judgment insofar as it directed the trial court to enter denial of certification with prejudice. We remand to the Court of Appeal with directions to, in turn, remand to the trial court for it to reconsider meal period subclass certification in light of the clarification of the law we have provided.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.
WERDEGAR, J., Concurring.—I join fully in today‘s majority opinion, which I authored. For guidance on the issue we remand, meal period subclass certification, I write separately to emphasize what our opinion does not say. In returning the case for reconsideration, the opinion of the court does not endorse Brinker‘s argument, accepted by the Court of Appeal, that the question why a meal period was missed renders meal period claims categorically uncertifiable. Nor could it, for such a per se bar would be inconsistent with the law governing reporting obligations and our historic endorsement of a variety of methods that render collective actions judicially manageable.
Employers covered by Industrial Welfare Commission (IWC) wage order No. 5-2001 (
While individual issues arising from an affirmative defense can in some cases support denial of certification,2 they pose no per se bar (see, e.g., Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 334–338; Weinstat v. Dentsply Internat., Inc. (2010) 180 Cal.App.4th 1213, 1235). Instead, whether in a given case affirmative defenses should lead a court to approve or reject certification will hinge on the manageability of any individual issues. (See Sav-On, at p. 334.)
For purposes of class action manageability, a defense that hinges liability vel non on consideration of numerous intricately detailed factual questions, as is sometimes the case in misclassification suits,3 is different from a defense that raises only one or a few questions and that operates not to extinguish the defendant‘s liability but only to diminish the amount of a given plaintiff‘s recovery. We have long settled that individual damages questions will rarely if ever stand as a bar to certification. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334; Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266.) ” ‘In almost every class action, factual determinations [of damages] . . . to individual class members must be made. [Citations.] Still we know of no case where this has prevented a court from aiding the class to obtain its just restitution. Indeed, to decertify a class on the issue of damages or restitution may well be effectively to sound the death-knell of the class action device.’ ” (B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341, 1354.)
Instead, we have encouraged the use of a variety of methods to enable individual claims that might otherwise go unpursued to be vindicated, and to avoid windfalls to defendants that harm many in small amounts rather than a few in large amounts. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at pp. 339–340; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 714–715.) Representative testimony, surveys, and statistical analysis all are available as tools to render manageable determinations of the extent of liability. (See, e.g., Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 749–755 [upholding as consistent with due process the use of surveys and statistical analysis to measure a defendant‘s aggregate liability under the IWC‘s wage orders]; Dilts v. Penske Logistics, LLC (S.D.Cal. 2010) 267 F.R.D. 625, 638 [certifying a meal break subclass because liability could be established through employer records and representative testimony, and class damages could be established through statistical sampling and selective direct evidence]; see generally Sav-On, at p. 333 & fn. 6.) “[S]tatistical inference offers a means of vindicating the policy underlying the Industrial Welfare Commission‘s wage orders without clogging the courts or deterring small claimants with the cost of litigation.” (Bell, at p. 751.)
Liu, J., concurred.